BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
2025 edition (covering the 2023–2024 biennium) indi - cates that arbitrations involving international contracts – those with a foreign party – are primarily conducted before the CAM-B3 ( Câmara do Mercado ), CAM- CCBC and the International Chamber of Commerce (ICC). These institutions are preferred for their experi - ence with complex, high-value and cross-border dis - putes, their established rules and rosters of qualified arbitrators, and their institutional credibility with both domestic and foreign parties. As for new institutions, a high volume of small arbitral chambers is being created, often oriented towards specialisation or regional expansion. In addition, Law No 14,711/2023 (the Legal Framework for Guaran - tees) expressly authorises notaries public to act as arbitrators in resolving certain out-of-court disputes, which may in time foster new arbitration-related activ - ity outside the traditional institutional chambers. 1.4 National Courts In Brazil, there is no single international commercial court or nationwide court exclusively designated to hear arbitration-related disputes. Domestic arbitra - tion-related matters are generally submitted to the competent state court under the ordinary rules of jurisdiction, although some state courts – notably the São Paulo Court of Justice (TJSP) – have created spe - cialised chambers for business matters. Foreign arbitral awards, however, must be recognised by the Superior Court of Justice (SCJ) before they can be enforced in Brazil, pursuant to Article 35 of the BAA. Article 34 further provides that foreign arbitral awards shall be recognised and enforced in accord - ance with applicable international treaties, includ - ing the New York Convention, enacted in Brazil by Decree No 4,311/2002. Once recognised, the award is enforced before the federal courts of first instance.
statutory regimes for each category. The BAA was influenced by the UNCITRAL Model Law, but it does not fully adopt that model. Its main similarities include: • party autonomy to define the procedure, under Article 21; • separability of the arbitration agreement, under Article 8; • kompetenz - kompetenz (competence-competence) under the sole paragraph of Article 8; • limited judicial intervention; and • recognition of the binding effect of arbitral awards, under Article 31. The main differences include: • specific formal requirements for arbitration agree - ments, distinguishing the arbitration clause (Arti - cle 4) from the submission agreement (Article 9), whereas the Model Law treats the arbitration agreement as a single concept; • a distinct regime for interim measures, which does not follow Chapter IV-A of the 2006 Model Law revision – pre-arbitral urgent relief is governed by Articles 22-A and 22-B, with its own framework; • a narrower regime for requests for clarification of awards under Article 30, subject to a shorter time limit than the corresponding provision of the Model Law; and • specific rules on court assistance, including the constitution of the tribunal under Article 7 and judicial co-operation through arbitral letters ( cartas arbitrais ) under Article 22-C. 2.2 Changes to National Law The BAA remains the main legal framework governing arbitration in Brazil, and there have been no recent amendments to it. However, past reforms, sector- specific legislation and pending bills should still be monitored. The main points are as follows. 2015 Reform Law No 13,129/2015 amended the BAA. Among other changes, it: • expressly allowed the direct and indirect pub - lic administration to use arbitration for disputes involving disposable patrimonial rights;
2. Governing Legislation 2.1 Governing Law
Arbitration seated in Brazil is governed by the BAA. The Act applies to both domestic and international arbitrations seated in Brazil, since Brazilian law adopts a monist approach and does not provide for separate
164 CHAMBERS.COM
Powered by FlippingBook